the fossat case, 69 u.s. 649 (1864)
TRANSCRIPT
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69 U.S. 649
17 L.Ed. 739
2 Wall. 649
THE FOSSAT OR QUICKSILVER MINE CASE.
December Term, 1864
ABOUT fifteen miles south from the southern end of the Bay of San
Francisco, and separated from it by irregular mountain slopes, lies a vale,
called the Ca nada de los Capitancillos, or Valley of the Little Captains.1
The northern limit of this valley is an elevation called the Pueblo Hills;
hills picturesque enough; with nothing else, however, as yet, specially tomark them. Descending or turning these, the traveller is in the vale.
Along the south edge of the valley runs a ridge of hills, range of
mountains, or Sierra; for by each of these terms, as by several others, the
elevation might properly or improperly be named. A value different from
that of the Pueblo Ridge belongs to these. These are filled with cinnabar of
unrivalled purity and richness. Here is the ALMADEN MINE; a mine,
that with others near it, the Enriqueta, San Antonio, &c., is estimated at$20,000,000, the gem of quicksilver mines in the New World, perhaps of
the entire earth. This range we call the Mining Range, or Mining Ridge.
The opposite map may assist a comprehension.2
Immediately south of, or behind this Mining Range, and detached from it,
for the most part, by a steep, narrow, broken, and irregular depression,
gorge, or valley, rises a ridge, range, or Sierra, different, as it was
generally regarded,
from the other, though by some persons regarded as the main part of the
same range. This elevation we designate as the Azul Range, or Azul
Ridge.3
The northern limit of the valley we have said is the Pueblo Hills. The top
of these is about 1000 feet above the level of San Francisco Bay, and 400
above the lowest part of the valley immediately south of them.
The Mining Ridge at its greatest elevation rises several hundred feet
higher than the Pueblo Hills in front of it, across the valley. The Almaden
Peak, one peak of this ridge, at its eastern extremity, is 1500 feet above
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this level; but the elevations of the ridge generally, as they extend towards
the west, diminish in height, and are broken by various depressions, which
permit easy access from the valley on the north to the foot of the
depression or valley at the base of the Azul Range. The Azul Range,
behind, rears its head suddenly up, far above the Mining Range before it,
to the height of 4000 feet above the level of the sea.
The Mining Range extends from east to west, and parallel with the Azul
Range. It runs about five miles. On its slopes, as well on that towards the
valley on the north, as on that which makes one side of the ravine upon
the south, the best and most permanent grazing of the region is to be
found. At its widest place it is more than a mile and a half from base to
base, measuring directly through; and it slopes off gradually at both ends.
It is connected with the Azul Range by a ridge four hundred feet lower
than itself, and twenty-four hundred lower than the Azul Range. This is awater-shed, on one side of which are the sources of the Capitancillos and
on the other those of the Alamitos. The one stream runs between the two
ranges, and turns to the north at the western end of the Mining Range. The
other flows eastward, and turning the eastern end of the range as the other
had done the western, crosses the valley till its course is arrested by the
Pueblo Hills. Here, turning its course to run along their base, it runs
westward till it meets the other stream, and forming with it the Guadalupe
River, the two discharge their waters through its channel into San
Francisco Bay.
At the place where the Alamitos strikes the Pueblo Hills, it is joined by a
mountain stream called the Arroyo Seco,4 a point which the reader must
observe.
Nearly in the centre of this valley stands a little hill, Loma, as it is called in
Spanish,—its side or skirt sloping irregularly by a series of graceful
undulations towards the plain; its descending curve thus forming thatwhich it required no great imagination to call a 'lap.'
Such is the valley, its boundaries and its features, as they strike the eye.
In the eastern part of it, an old Mexican, Sergeant Don Jos e Reyes
Berreyesa, fixed himself, about 1834, by leave of Governor Figueroa.
Adjoining him on the west, and holding the western part, was another
Mexican, Leandro Galindo. They both built their houses and made their chief improvements at the base of the Pueblo Hills; that is to say, opposite
and away from the Mining and the Azul Ranges, their exposures to the
south. Neither of them had any title but such provisional ones as were
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usual in California while it yet belonged to Mexico, in anticipation of a
final grant. In time Galindo went away, and was succeeded by Justo
Larios, who continued his improvements at the foot of the Pueblo Hills,
and granted a small piece of land, at the western extremity of the hills and
near the junction of the Capitancillos and Alamitos, far off from the
southern ridges, to a certain Foster.5 Larios and Berreyesa, however, got
along less amicably than had done Galindo and his military neighbor.Berreyesa complained to the Governor that Larios claimed land that was
his, and had actually removed his house and set it on the dividing line.
Larios, he said, had 'room to extend himself outside of the Ca nada;'
while he, Berreyesa, 'had absolutely nowhere to enlarge.' Larios, about the
same time presented his petition, complaining of Berreyesa as
overbearing, and disposed to be rapacious. The matter disturbed the happy
valley, and threatened to become a feud. Governor Alvarado referred both
petitions to the Prefect, the highest judicial officer in his department, anddirected him to call the parties before him, to confront them with one
another, hear their proofs, and to report the result of his investigation. The
Prefect did this. The parties came before him, and he succeeded in
conciliating them. Berreyesa produced a dise no, and with that before
them they agreed upon a division-line as follows:
'A straight line (una recta, &c.), from the angle which the Alamitos forms
with the Arroyo Seco, direction southward, passing by the eastern base
OR over the eastern skirt , OR lap (the meaning was not clear), of the
loma6 (rumbo al Sul LA FALDA de la loma), in the centre of the valley
TO THE Sierra.'
Upon this dise no the Prefect traced a dotted line, which showed what had
been agreed upon. He then reported the whole matter to the Governor; and
the map, with the dotted line or 'L-i-n-d-e-r-o' upon it, went to the
archives. A copy is opposite.
The controversy being settled, Larios petitioned the Governor for a grant.
Alvarado made it. Thus it ran:
'I declare Justo Larios owner of the tract called 'Los Capitancillos,'
bounded by THE Sierra, by the Arroyo Seco on the side of Santa Clara,
and by the tract of Berreyesa, which has for boundary a line running from
the junction of the Arroyo Seco and the Alamitos, southward to THE
Sierra, passing by the eastern base, OR over the eastern skirt or lap(rumbo al Sul LA FALDA) of the loma, in the centre of the valley.'
The grant was subject to these ordinary conditions:
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'2d. He shall solicit the proper judge to give him juridical possession in
virtue of this decree, by whom the boundary shall be marked out , &c.
'3d. The land herein referred to is one league of the larger size, a little
more or less. The judge who shall give the possession shall have it
measured in conformity to law, leaving the surplus which remains to the
nation for the purposes which may best suit him.' The dise no submitted by Larios appears on the page opposite.7
About this same time Berreyesa applied for a grant. His petition prays for
a grant of two sitos, to extend from the dwelling-house of Larios up to the
matadero, 8 'with all the lomas (hills), that pertain to the Ca nada the
meantime settled, the Governor (August 20, 1842) made the concession.
The grant recites the petition of Berreyesa for a part of the place called
the Ca nada de los Capitancillos, bounded on the north by the lomas
bajas of the Pueblo San Jos e; on the south by the Sierra; on the west by
the rancho of Larios, which has for boundary the angle formed by the
Arroyo Seco, and that of the Alamitos course south, the base (or skirt) of
the hill situated in the centre of the Ca nada until arriving at the Sierra:
(el cual tiene por lindero en angulo que forma el Arroyo Seco y el de los
Alamitos, rumbo Sur, la falda de la loma, situada en el centro de la Ca
nada.)9
To the reader who has been able to get before his mind the topographicalnature of this place, it will be obvious that questions might arise on the
language of the grant to Larios. There were two ridges, or two parts of one
ridge; either of which ridges, or parts of a ridge, might be styled a Sierra.
Sierra means a saw, and is a term applicable, in some sense, to any range
or ridge of hills, serrated as every one naturally is. In certain aspects—
geologically, perhaps, or possibly, topographically may be as well—the
Mining Range was part of the Azul Range. Was it so within the meaning
of the Governor and grant? And bearing on this question of philologywould come perhaps another like it: 'What meant in law the word
Canada?' Los Capitancillos was a ca nada. But did this mean a valley so
pure and simple that no elevation whatever could break its plain? or might
it hold the Mining Ridge and let the vaster Azul Heights overtop the
whole, and leave both plain and mine to insignificance below? These were
questions which the United States might have to litigate against Berreyesa
and Larios both united.
Then assuming the Mining Ridge to be part of the valley, and the United
States to be thus disposed of, there might come another question—a
question for Larios and Berreyesa, after disposing of the Government, to
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litigate between themselves. What did falda truly mean? It was a term the
very favorite of poetry; and with a sense elegantly answered—answered
with truth as well—by our English 'lap,' or 'skirt,' or 'fold.' Was this the
sense in which the old Mexican soldier and his lately litigious neighbor
understood it, when making peace for themselves, they made one of the
greatest lawsuits which the world has seen for others?
Even conceding falda to mean the base of the hill, and that the parties had
meant to pass it , another question might still arise upon the very lindero
and map which at first seemed so plain as to render question impossible.
The line was to pass the base; but did the dise no of Berreyesa, on which it
was traced, not show that it also meant to pass the Mining Ridge (on this
map plainly marked, and bearing the name of lomas bajas), so as to leave
much its greater part with him. In nature could any line drawn from the
junction of the creeks south, past the base, do this? Then on his dise nocertain elevations were marked, both on the Mining Ridge and on the Azul
Ridge behind. One on the Mining Ridge was especially prominent at its
eastern end. Were there any known peaks, in nature, on these ridges? If so,
could any line drawn as we have mentioned be made and leave them in
that relative position where the dise no seemed to place them? The
difficulty may be comprehended by any reader who compares the map at
p. 651, a map of the actual related topography, with the dise no of
Berreyesa, which gives the parts, but in positions less relatively true.
On these niceties of language—on such constructions of rude drafts—
depended, in part, the question, whether this Mine of the Almaden—the
glory of the Cuchilla de la Mina, or Cuchilla de la Mina de Luis
Chabolla —should belong to a few citizens or to a whole republic; to the
representatives of Justo Larios, to those of 'the sergeant Berreyesa,' or to
the United States as national domain.
The grant was of the valley. The point of departure was confessedly the junction of the creeks Alamitos and Arroyo Seco. A line running
'southward' 'to the Sierra' Azul , ended the rights of the United States in the
matter. A line running 'southward' at the base of the loma, as
distinguished from one which should be sustained in its curving folds,
ended Berreyesa's also. If, therefore, the line was to be run to the Sierra
Azul, and at the base of the loma, south and straight from the union of the
creeks, the mine belonged to Larios, or to whoever might be his fortunate
successor.
The questions were worth a controversy.
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By 1852, California was a State of the American Union, and three-
quarters of the property granted to Larios had become vested in one
Fossat; the remaining fourth (which was in the direction of the mission
property of Santa Clara, and at the extreme west of the valley) being
owned by the Guadalupe Mining Company.10 Fossat now presented his
petition to the land commissioners appointed by the act of Congress of
March 3, 1851, to settle the respective rights of the United States andclaimants under the former Government to lands in California, for a
confirmation of his claims derived from Larios. The board decided in
favor of it, and the United States appealed to the District Court;
Berreyesa, however, being no party to the specific proceedings.
That court, saying nothing whatever in its opinion on the question of
where the line meant to be fixed on by Larios and Berreyesa would strike
the Azul Range (if prolonged to that extent) as respected the AlmadenMine, and as respected the now known and actual topography, went into
an argument to show that it must at least come somewhere to that range,
and over the Mining Range; in other words, that the west portion of the
Mining Range, whatever that portion might be, did not belong to the
United States.
The court accordingly decided that the grant was good for the place
known as Los Capitancillos, bounded and described on the south by the
Azul Range, as distinguished from the lower hills or Mining Ridge; on thewest (about which there was no question) by Arroyo Seco on the side of
Santa Clara. The decree, then, went thus as respected the eastern line:
'On the east by a line running from the junction of a certain other rivulet,
called Arroyo Seco, and the Arroyo de los Alamitos, southward to the
aforesaid main Sierra, passing by the point or part of the small hill
situated in the centre of the Ca nada, which is designated in the
expedientes and grants of Justo Larios and Jos e Reyes Berreyesa as 'la falda de la loma,' and crossing the range of hills designated above as the
Cuchilla de la Mina, or Cuchilla de la Mina de Luis Chabolla, and in
which are situated the said Guadalupe, San Antonio, and New Almaden
Mines, and which is the same range of hills designated ' Lomas Bajas' on
the dise no or map in the aforesaid expediente of Jos e Reyes Berreyesa,
the said eastern line herein described being intended to be the same line
agreed upon as the line of division between the lands of Justo Larios and
Jos e Reyes Berreyesa, as expressed in the respective expedientes andgrants of said Justo Larios and Jos e Reyes Berreyesa, and delineated by
the dotted line on the said dise no or map in the expediente of Jos e Reyes
Berreyesa; in the location of the said line reference to be made to the
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description thereof in the said expedientes and grants, and the delineation
thereof on the said dise no or map in the expediente of Jos e Reyes
Berreyesa, which expedientes, grants, and dise no, or map, are on file and
in evidence in this case.'The northern boundary of the tract was declared to
be that shown in the dise no or map of Larios; which was in effect the
stream, marked on his draft as the Arroyo Capitancillos, but on the map
styled the Alamitos.
Confirmation was thus made of the whole tract granted to Larios, with the
exception of the two adjacent parcels thereof lying on the westerly end of
said tract, and claimed by the Guadalupe Mining Company. This gave him
a tract of about a league and three quarters.
The court in its opinion noted, indeed, that only three of the boundaries
were designated in the grant, the southern, the western, and the eastern;
but inclined to think that the description of the tract by name, as Los
Capitancillos, a known valley, and the delineation on the dise no of Larios
of the two ranges of hills within which it was contained, sufficiently
indicated the location of the northern boundary, the mention of which was
omitted in the grant; especially as the call was for a league pocos mas o
minas,—a league more or less.
From this decree the United States appealed to this court.11 This court
considered that there was more weight in the last point which the courthad noted than the court itself gave to it, and reversed that decree;
Campbell, J., who gave the opinion, remarking in different parts of it as
follows:
1 'The District Court confirmed the claim of the appellee to land limited by
specific boundaries, and ascertained those boundaries, as they exist on the land,
with precision. Under this decree the grant to Larios includes seven thousand five hundred and eighty-eight 90/100 acres.12
2 'We concur in the opinion of the Board of Commissioners and of the District
Court, that affirms the validity of the grant of the Governor of California to
Justo Larios, and the regularity of the conveyances through which the claimant
deduces his title.'
3 The court here gave an account of the dispute between Larios and Berreyesa,
and of the settlement of it, and went on:
'
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, ,
approval of the Departmental Assembly, and to the performance of
conditions.13
5 'The southern, western, and eastern boundaries of the land granted to Larios are
well defined, and the objects exist by which those limits can be ascertained.
There is no call in the grant for a northern boundary, nor is there any referenceto the dise no for any natural object or other descriptive call to ascertain it . The
grant itself furnishes no other criterion for determining that boundary than the
limitation of the quantity, as is expressed in the third condition. This is a
controlling condition in the grant . The delivery of juridical possession, an
essential ceremony to perfect the title in the land system of Mexico, was to be
accommodated to it. The dise no presented by the donee to the Governor to
inform him of his wants represents the quantity to be one league, a little more
or less. This representation is assumed to be true by the Governor, and it forms
the basis on which his consent to the petition is yielded.
6 'He prescribes to the officer to whom he confided the duty of completing the
title to measure a specificed quantity, leaving the surplus that remains to the
nation as preparatory to the delivery of judicial possession to the grantee. The
obligation of the United States to this grantee will be fulfilled by the
performance of the executive acts which are devolved in the grant on the local
authority, and which are declared in the two conditions before cited. We regardthese conditions to contain a description of the thing granted, and in connection
with the other calls of the grant they enable us to define it. We reject the words,
'a little more or less,' as having no meaning in a system of location and survey
like that of the United States, and that the claim of the grantee is valid for the
quantity clearly expressed. If the limitation of the quantity had not been so
explicitly declared , it might have been proper to refer to the petition and the
dise no, or to have inquired if the name, Capitancillos, had any significance as
connected with the limits of the tract, in order to give effect to the grant. But
there is no necessity for additional inquiries. The grant is not affected with any
ambiguity. The intention of the Government of California is distinctly declared,
and there is no rule of law to authorize us to depart from the grant to obtain
evidence to contradict, vary, or limit its import.
7 'The grant to Larios is for one league of land, to be taken within the southern,
western, and eastern boundaries designated therein, and which is to be located,
at the election of the grantee or his assigns, under the restrictions establishedfor the location and survey of private land claims in California, by the
executive department of this government. The external boundaries designated in
the grant may be declared by the District Court from the evidence on file, and
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such other evidence as may be produced before it, and the claim of an interest
equal to three-fourths of the land granted is confirmed to the appellee.
8'The decree of the District Court is reversed, and the cause is remanded to that
court with directions to enter a decree conforming to this opinion.'
9 The case was again heard below, and on new evidence, tending, most of it, to
the subject of the southern boundary. On the 18th of October, 1858, the District
Court again gave an opinion, and again made a decree. The opinion was a
further argument on the evidence, new and old alike, to show that the Azul
Range was the true south boundary,—'the most important, if not the only point
discussed,' the court says, 'on the hearing,' and which the court treat as 'the
question to be determined.' Nothing is argued about the eastern boundary. The
decree again decreed that the grant was a valid one. Its southern and western
boundaries were in substance as already above set forth. The eastern boundarywas thus again disposed of.
10 'The eastern boundary is a straight line commencing at the junction of a certain
rivulet, called Arroyo Seco, with the Arroyo de los Alamitos, and thence
running southward to the aforesaid main sierra or mountain range, passing by
the point or part of the small hill situated in the centre of the Ca nada, which is
designated in the expedientes and grants of Justo Larios and Jos e Reyes
Berreyesa as 'la falda de la loma,' and crossing the range of hills designated
above as the 'Cuchilla de la Mina,' or 'Cuchilla de la Mina de Luis Chabolla,' in
which are situated the said Guadalupe and New Almaden mines, and which is
the same range of hills designated ' Lomas Bajas,' on the dise no or map in the
expediente of Jos e Reyes Berreyesa on file in the case, the said eastern line
crossing, also, the said Arroyo de los Alamitos and terminating at the base of
said main sierra; and the said eastern line herein described, being intended to be
the same line agreed upon as the line of division between the lands of Justo
Larios and Jos e Reyes Berreyesa, as expressed in the respective expedientesand grants of said Justo Larios and Jos e Reyes Berreyesa, and delineated by
the dotted line on the said dise no or map in the expediente of Jos e Reyes
Berreyesa; and in the location of said line, reference is to be made to the
description thereof in the said expedientes and grants and the delineation
thereof on the said dise no or map in the expediente of Jos e Reyes Berreyesa,
which expedientes, grants, and dise no or map, are on file and in evidence in
this case.'
11 It was ordered that the fourth line should be run so as to include one league
only; and the title was confirmed on that basis.
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12 The United States again appealed to the Supreme Court;14 but a motion was
made to dismiss the appeal because the decree below was interlocutory. The
court did dismiss the appeal, and in the opinion say as follows:
13 'The court determined (when the case was here before), 'that a grant under
which the plaintiff claimed land in California, was valid for one league, to be
taken within the southern, western, and eastern boundaries designated therein,
at the election of the grantee and his assigns, under the restrictions established
for the location and survey of private land claims in California by the executive
department of the Government. The external boundaries of the grant may be
declared by the District Court from the evidence on file, and such other
evidence as may be produced before it; and the claim of an interest equal to
three-fourths of the land granted is confirmed to the appellee.'
14 'This motion to dismiss the present appeal is resisted, because the inquiries and
decrees of the Board of Commissioners for the settlement of Private Land
Claims in California, by the Act of 3d of March, 1851, in the first instance, and
of the courts of the United States, on appeal, relate only to the question of the
validity of the claim, and by validity is meant its authenticity, legality, and in
some cases interpretation, but does not include any question of location, extent,
or boundary,—and that the District Court has gone to the full limit of its
jurisdiction in the decree under consideration, if it has not already exceeded it.'
15 The court then examining this matter and declaring what the admitted duties of
the District Court were, adds:
16 'But in addition to these questions upon the vitality of the title, there may arise
questions of extent, quantity, location, boundary, and legal operation, that are
equally essential in determining the validity of the claim. In affirming a claim
to land under a Spanish or Mexican grant, to be valid within the law of nations,the stipulations of the treaty of Guadalupe Hidalgo, and the usages of those
governments, we imply something more than that certain papers are genuine,
legal, and translative of property. We affirm that ownership and possession of
land of definite boundaries rightfully attach to the grantee.'
And this court concludes its opinion thus:
17 'But, after the authenticity of the grant is ascertained in this court, and areference has been made to the District Court, to determine the external bounds
of the grant, in order that the final confirmation may be made, we cannot
understand upon what principle an appeal can be claimed until the whole of the
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directions of this court are complied with, and that decree made. It would lead
to vexatious and unjust delays to sanction such a practice. It is the opinion of
the court that this appeal was improvidently taken and allowed, and must be
dismissed; and that the District Court proceed to ascertain the external lines of
the land confirmed to the appellee, and enter a final decree of confirmation of
that land.'
18 On the filing of this mandate of dismissal, the Surveyor-General of California
was ordered to survey the land confirmed in conformity with the decision of the
District Court, made 18th October. He made the survey, which was approved
by the Surveyor-General, 18th December, 1860, and filed it, with a map, in the
court below, 22d January, 1861. The survey and map, as was testified by the
deputy surveyor Hays, and one Conway, a clerk in his office, who assisted in
making it, was made in conformity with the decree which they had before
them. That survey is indicated on the map, at page 651, by a heavy connectedline.
19 It appeared, also, that Berreyesa had at one time caused a private survey to be
made of his tract, and this survey showed that the line lay essentially as marked
by this heavy connected line. Another made for the Guadalupe Mining
Company located it in the same way. A public survey, made by Surveyor-
General Hays, in 1855, located it also thus.
20 Not long before the above-mentioned order of the District Court was made,
Congress passed the act of June 14, 1860,15 commonly called the 'Survey Act,'
which authorizes the District Court to allow persons not parties to the record to
intervene in matters of the survey and location of confirmed private land
claims, and to show the true location of the claim. For that purpose they may
produce evidence before the court, and on such proof and allegations the court
shall render judgment. In regard to appeals, the whole language is simply, 'And
no appeal shall be allowed from the order or decree as aforesaid of the DistrictCourt, unless applied for within six months.'
21 The survey was accordingly ordered into court. It made the Azul Range, as
distinguished from the Mining Range, the southern boundary. The eastern line
was drawn, as the reporter supposes, for he never saw the plat,—from the
junction of the two creeks Seco and Alamitos south, past the base of the loma;
so leaving the mine on the land of Larios.
22 Berreyesa, Foster, and others, who had not been parties to any of the immediate
previous proceedings, now excepted to it.
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23 Berreyesa excepted because the western boundary of his land constituted the
eastern of that of Larios, 'to wit, a line beginning at the junction of the creeks
Alamitos and Seco, and running southerly to the main Sierra and Sierra Azul,
crossing the Lomas Bajas in the manner shown by the dise no of the land
granted to said Berreyesa; whereas the survey confirmed in this case locates the
eastern line so as to include a tract of land within the exterior lines of the land
granted to Berreyesa, and not granted to the said Larios.'
24 Foster excepted because the tract being carried over far to the south, and being
confined to one league, his small tract was left out. So, on similar grounds, did
other parties who subsequently abandoned their exceptions.
25 The United States, by the District Attorney, entered a formal appearance, but
made no objection to the survey at any stage of the hearing, suggested no
argument, and offered no evidence against it.
26 Fossat , who represented Larios, came in to protect the survey, averring that it
was right, and should stand.
27 The District Court,—considering that no decision had ever yet been made by it
as to the eastern boundary; not understanding, apparently, that any supposed
decision with regard to that line had been passed on by the Supreme Court ineither of the decisions quoted in the preceding part of this statement;
conceiving further, it would seem, that under the new act of 1860 (the 'Survey
Act,' passed after the second decision in this court was made), the court below
might, on the intervention of Berreyesa, then for the first time heard in this
particular cause, determine the eastern line, irrespective of any decree obtained
by either party in a proceeding which it considered as a proceeding between
himself only and the United States,—proceeded to settle the eastern line; and in
some degree, it was argued, to treat all things de novo. A great deal of new
evidence was taken in regard to this eastern line; evidence bearing also on the
southern line. The scope of much of the former was to show entire error of
scale in Berreyesa's dise no, and that regulating the eastern line by certain
objects, clearly enough indicated on this dise no, other than the loma, the line
could not be drawn south from the junction of the creeks past the loma to the
point where that dise no showed that it meant to come. The matter will be
understood better further on in the case. The result of the whole was that,
affirming the Mining Range as the south boundary; that is to say, carrying the
tract to the Azul Range, as being the true Sierra, the District Court now made
an east line, somewhat such as is exhibited by the light dotted line on the map
at p. 651. The line began at the junction of the two creeks, thence ran south to
the eastern base of the loma; thence south 55° west to a point where another
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angle was made; thence south 34° west to the Azul Range. The effect was, that
while Larios or his representative got some part of the Mining Ridge, the
eastern line was made to reach that ridge at a point so far west that the
ALMANDEN MINE, the great object of contest, and the largest portion of the
ridge, fell into the tract of Berreyesa.
28 From this decree the claimants under Larios appealed to this court. So didFoster. The United States took no appeal , and the representatives of Berreyesa,
of course, were desirous to maintain the decree.
29 The whole case was now before this court,—the case as it was presented by all
the evidence taken in all the proceedings below. This was the case viewed as an
original case.
30 But on this occasion it was here also, of course, as it might be affected by what
had been decided in it on the two different occasions when it was here before
on appeal, and when the court had expressed itself, and had given mandates,
such as have been previously stated in this report. The effect of the District
Court's own two decisions on its power to decide further was also to be
considered; its power, perhaps, under the Survey Law of 1860, to change the
decree of confirmation.
31 As an original case,—the detached parts in which it presented itself below, and
on the three different hearings being brought together, and all presented in
sequence,—the matter was essentially thus: the dise nos of both Larios and
Berreyesa, the last with the L-i-n-d-e-r-o upon it, being, of course, parts of the
case everywhere.
32 1. As to the southern boundary: Witnesses were brought to show that the
ranges were one sierra, and so that the tract did not include any part of theMining Ridge. Mr. Veach, a geologist, swore thus:
33 'The Mining Ridge is detached from the main mountain by a stream that runs
from east to west, making a sharp hill between the higher mountain and the
plain; but I look upon this as only a bench-like portion of the mountain, which
has been separated from it by the gorge cut down by the stream. The reason
why I so consider it is the gorge-like character of the valley of the little stream,
and the sharpness of the ridge, and the elevation of the bottom of the gorge soconsiderably above the level of the valley; it is, I should judge, 300 feet above
it. From geological considerations, also, I should consider this ridge clearly and
distinctly a portion of the mountain. The ridge does not present the spur-like
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character which would show its detachment from the mountain, for it runs
parallel with the general course of the latter.'
34Mr. Matheson, engaged in the public surveys of the United States, testified in
the same way:
35 'I do not consider that there is a main sierra separate from any other portion of
the sierra. The Mine Ridge is merely a spur, and connected by a ridge with the
main sierra. You can travel from the valley right up to the highest point of the
ridge.'
36 Referring to the dise no of Larios (p. 656), it will be noted that his tract, as there
indicated, came to a range of hills called Sierra del Encino ('range of the live-
oak,' or, less accurately, perhaps, in a grammatical point of view, 'live-oak range.')16
37 Oaks, it was shown, grew everywhere about here. 'There are a considerable
number of them,' said one witness, 'on the mountains back of the Mine Ridge,
and also on the plains north of it. There are also a considerable number of them
found generally on the northern slope of the ridge, and presenting a very
beautiful green appearance.'Then there was on this dise no but one sierra
indicated. The tract did not include it by passing over to any other behind it. Nosecond range was marked. No streams of any kind answering to any in nature
ran on this dise no at the foot of the range, though streams did, in fact, run at
the foot of the Azul Range. At the foot of the Pueblo Hills, where a stream ran,
in fact, one ran also on the dise no.
38 Moreover the residence of Larios—that in which he had succeeded Galindo—
was, like the home of Berreyesa, on the north edge of the tract, at the foot of
the Pueblo Hills.17
Larios was living in this part of the valley. No tract of oneleague, not very irregular in shape, could include the Mining Ridge without
excluding nearly all the land along the base of the Pueblo Hills. The maps,
moreover, reversed the ordinary law which governs the construction of maps,
and make the top represent the south, the bottom the north, the right the west,
and the left the east; hence, an inference that the point from which everything
was viewed was the north edge of the valley. An experiment showed, also, that
the dise nos of Berreyesa and of Larios were much the same in size; and taking
the two, and putting them edge to edge in the manner of 'Indentures,'—fittingthe edge which indicated the western side of Berreyesa's tract against that
which indicated the eastern side of that of Larios, the Pueblo Hills, as marked
on each, being fitted and made the starting-point,—that the Sierra del Encino
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of the draft of Larios ranged itself opposite to the Lomas Bajas (the Mining
Ridge, undoubtedly) of Berreyesa's, and not against the Sierra Azul , so plainly,
on the draft of Berreyesa, distinguished from it.18
39On the other hand, witnesses showed that, in many respects, the two ridges
might be considered different, and by many were so; that the separation, if
sometimes called a gorge or ravine, was as often, or oftener, called a valley.Then one witness, an American, who had lived since about 1835 in California,
and near the place, testified that the Mining Ridge had been known by the
name of Cuchilla de la Mina, and as a thing separate from the Azul Range,
often known by the name of Sierra Santa Cruz , the former being connected
with the latter only by a ridge at one place. It was shown also, too, that Larios
was quite illiterate, 'unable to handle a pen,' and that his dise no had been made
for him by a friend of his named Rios, from oral description given him at
Monterey, away from the land, Rios himself never having been on the land, nor knowing anything about it. He had not, however, drawn that of Berreyesa. The
testimony—that of photography included—showed, moreover, and this past
any question, that while the elevations hereabouts, and the plain, also, were
fruitful in oaks, there was upon the Azul Range one umbrageous oak of
venerable years and extraordinary size, standing on a spur of the mountain,
projecting boldly from the mass of the range, and presenting so clear an outline
to an observer in certain directions as to be visible for fifteen miles; a prominent
feature in the landscape. It was testified, in fact, to be so well known to the people of the neighborhood as to have acquired the name of ' Encino Coposo de
la Sierra Azul .' Further, on the dise no of Berreyesa the Mining Ridge was
styled Lomas Bajas, which means 'Low Hills;' and the term Sierra was given to
the Azul Range, 'Cierra Azul.' Hence, ground for an inference that the term
'Sierra,' in the parlance of that place and time, had become appropriated to the
Azul Range, and that 'Lomas Bajas,' or Low Hills, was the common title of the
Mining Range.
40 The L-i-n-d-e-r-o, it will be observed, crosses the Mining Ridge, and goes to
the Azul Mountains, here designated Sierra Azul.
41 2. Then as to the eastern boundary. In favor of the claim of Larios, there of
course was the L-i-n-d-e-r-o and its history.
42 On the other hand, and in favor of Berreyesa and of the line as settled by the
decree below, the testimony of Mr. W. J. Lewis, an acute-minded and well-
educated surveyor, went to prove that the compass on the dise no of Berreyesa
was erroneous to the extent of 45°, the north point being represented that much
to the eastward; that the actual position of the loma was much more to the east,
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and near to the junction of the Alamitos and Seco than that dise no indicates;
that standing at the junction of the creek, and looking south, the range of the
Azul did present one peak at the west, Mount Umunhum, higher than any near
it; and one peak at the east, Mount Bache, much higher than any near it , and
higher even than Mount Umunhum.19 Two elevations, answering or not
answering this character, are presented, it will be seen, on the dise no of
Berreyesa. So in nature at the Mine, which is near the eastern end of theMining Ridge, there is a peak known as the Mine Peak, and from that peak
there is a continuous descent to the Alamitos Creek. On the dise no of
Berreyesa, at the eastern edge of the Lomas Bajas, or Low Hills (meant
confessedly to represent the Mining Ridge, in some part, or to some extent),
there was or was not, at its east end, such an elevation and descent. Then it was
shown by Mr. Lewis—who had spent months here, and made surveys and
observations of every natural feature of the region—that while indicating
different objects very well, the dise no was drawn without any reference toscale whatever; relative position being wholly misrepresented. The house of
Larios, for example, which was in fact thirty feet wide, was made to cover a
fifth of the width of the valley, there a mile wide.
43 Mr. Lewis, accordingly, thought that he could see in the dise no an intent to
represent the three peaks, especially the two former.20 Assuming this to be so,
and comparing the dise no with nature, there would be a great error. In nature,
less than one mile in length lay eastward of the division based on the L-i-n-d-e-r-o, and over four and a half miles lay to the westward; whereas, the part of the
ridge represented on Berreyesa's dise no as lying to the westward of the line,
would be but five-sixths of a mile, and all the rest was east, on Berreyesa's own
land. Hence, the loma, or lomita, not being shown in a position true to scale, an
inference that Mount Umunhum—an unmistakable object, and the Mining Peak
another—should govern the location in preference to the lomita, nearer the
starting-point and less definite, as this surveyor conceived . The difficulty was
that, by the terms of the grant, the line was to be drawn at the falda de la loma,which the interests of Larios interpreted 'base of the hill.' If the line could cross
the hill, going over its 'skirt' or 'lap' to a perfectly ascertained point at the other
side of the valley, a decree fixing the eastern line as Lewis fixed it could be
supported. The case as to the meaning of falda was thus: one witness being Mr.
Hopkins, 'keeper of the Spanish archives in the office of the Surveyor of the
United States for California, well acquainted with the Spanish language, and in
the habit of translating documents;' who had in fact made one translation of this
grant.
44 Q. You have translated the word ' falda' by the word 'skirt;' have you considered
well the exact definition of the word ' falda,' and is it exactly expressed by the
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word used in your translation?
45 A. I have carefully examined the definition of the word ' falda,' as laid down in
the standard lexicons of the Spanish tongue. I have examined the word as used
by ancient and modern writers of the Spanish language, and I can think of no
word in the English language which more clearly or legitimately expresses the
meaning than the word 'skirt.' I arrive at this conclusion from the definitionsthat I find given to the word in the Spanish lexicons, and from its use by
celebrated Spanish writers.
46 Q. In the sense in which you use the word 'skirt,' to what part of a hill or loma is
it to be applied?
47 A. It is to be applied to the lower or inferior part of the hill or loma.
48 Q. Have you made any translation of the definition of the word ' falda' given in
any lexicon? if yea, please produce that translation.
49 A. I have made a translation of the definition of the word ' falda,' as laid down
in the Royal Dictionary of the Spanish Academy, dedicated to Don Felipe V,
and printed at Madrid in the year 1732. Here it is:
50 ' Falda. That part of the long dress from the waist down, as the skirt or blouse of
women.
51 "Queen Mary promptly dismounted, and, raising the edges of her skirt ( falda)
and the sleeves of her dress, drew a hunting-knife from her belt, and with her
own hands opened the stag.
52 "The great queen was riding on a small ass, with the boy-god (nino dios) in her
lap ( falda).'
53 ' Falda. It is very commonly applied to that which drags from the afterpart of a
dress worn either by a person holding high office, or as a symbol of sorrow by
mourners accompanying a funeral.
54 "He carried the train ( falda) of Mary, Queen of Scots, the bride of the DauphinFrancis.'
55 ' Falda. By allusion, or metaphorically, is called that part of the hill or mountain
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which falls or descends from the middle down. LAT. Montis Radix.
56 "They reached the skirt ( falda) of a small hill. Naim was a small city situated
on the skirt ( falda) of Mount Hermon.'
57 ' Perrillo de falda (lap dog). The small pet dog, so called because women are so
much attached to them that they usually keep them in their laps ( faldas) that
they may not hurt themselves.
58 "I wager that you do not know why Apelles painted Ceres, the goddess of corn,
with a lap dog ( parillo de faldas)."
59 Q. Please give such examples of the use of the word ' falda' by Spanish writers
as occur to you, and give the translation into English of those passages in whichthe word is used.
A. The following I found some years ago:
60 The first is from Martin, a Spanish poet.
61 'Iba congi endo flores
Y quard ando en la falda
62 Mi ninfa para hac er una Guirnalda,' &c.
The translation of which is:
63 'My love was gathering flowers, and keeping them in her lap ( falda) to make a
garden.'
64 The second is from Jose de Cadalso, a celebrated Spanish scholar and poet:
65 'Con p echo humilde y reverente paso
66 Llegue a la sacra falda del Parnaso;
Y como en sue nos vi que llamaban
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Desde la sacra cumbre, y me alentaban
Ovidio y Taso, a cuyo docto influjo
67Mi numen estos versos me produjo.'
The translation of which is:
68 'With humble breast and reverent step I reached the sacred foot (falda) of
Parnassus, and, as in dreams, heard calling me from the sacred summit, Ovid
and Tasso, who inspired me, and under whose wise influence my muse
produced these verses.'
69 The third is a translation made by Juan de Janrequi, I think in the sixteenthcentury, from an Italian play. The following is an explanation of these four
lines: A romatic young shepherd was very much enamored of a beautiful
shepherdess, who, perhaps from a spirit of coquetry, treated him with scorn; the
young man took the disappointment so much to heart that he madly threw
himself from a neighboring precipice; and the lines of the poet are a description
given by an old hermit of the condition and place in which he found the young
man:
70 'Yo me estaba junto a mi cueva, que vecina al valle, y casi al pie del gran col
lado yace, do forma falda su ladera enhiesta.'
The translation of which is:
71 'I was at my cave, which lies near the valley and almost at the foot of the great
hill where its steep side forms a ( falda) skirt .'
72 The fourth is from Jovellanos, a poet of the eighteenth century:
73 'De la Siniestra orrilla un bosque ombrio
Hasta la falda del vecino monte
Se extiende; tan ameno y delicioso
Que le hubiera jazgado el gentilisimo
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Cross-examination.
Morada de algun dios, o a los misterios
74 De las Silvanas Driadas guadado.'The translation of which is:
75 'From the left shore shady wood extends as far as the skirt of the neighboring
mountain, so pleasant and delicious that the pagan world might have devoted it
as the dwelling of some God, or to the mysteries of the sylvan Dryads.'
76 The fifth is from a geological report made by Antonio del Castillo, one of the
professors in the Mining College of Mexico, in relation to the quicksilver mine
of Pedernal, and is as follows:
77 'La loma del Durazo esta unida por la parte del sur a otros de la misma
formacion que ella separadas por hondonadas o bajios de corta estension, ylimitadas al oriente por el mismo arroyo que pasa por la falda norte de la
primera.'
The translation of which is:
78 'The hill of Durazo is united on the part of the south to others of the same
formation with it, separated by ravines of short extent, and limited on the east
by the same arroyo which flows by the northern skirt of the first.'
79 Q. Have you any reason for supposing that the Spanish dictionary mentioned
by you—the Royal Dictionary of the Spanish Academy, dedicated to Don
Felipe V, and printed at Madrid in the year 1732—is the identical dictionary
from which the native Californians obtained their definition of the word ' falda,'
or any other words in use by them?
80 A. I have no reason for so supposing.
81 On the other hand, evidence from other poets, other dictionaries, and other
prose writers, tended to prove that if falda meant skirt, it meant the edge of the
skirt, its extremity as well as its higher folds.
82 In addition to all this evidence on both sides, of geologists, surveyors, scholars,
&c., photography and landscape painting both were largely invoked for the
cause of justice; and the judges of this court being unable of course to visit the
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PHOTOGRAPHS.
LANDSCAPES.
place, three thousand miles away, which the judge below had actually done,
sworn representations, the artists' oaths accompanying their work, were laid
before this bench. To exhibit these photographs and landscapes as part of the
'case,' is beyond a reporter's art, as attained to up to this day. The list below, if
not giving to the reader an idea of the topography as it existed in nature, will
give him some idea of the very special features of the case as it was exhibited
in this court, and bring excuse to the reporter if, without the reader's havingthem before him, the narrator has failed to present the 'case' in its truest and
clearest form; and with those impressions from it which, after all, may have
influenced the decision. Here they are, photograph and landscape alike,—the
landscapes without their colors:
83
84 Exhibit No. 1, Photographic View, taken near the junction of the two creeks,looking westerly.
85 Exhibit No. 2, Photographic View, taken one-quarter of a mile below the
junction, looking southwesterly.
86 Exhibit No. 3, Photographic View of the eastern hill of the Lomita, taken near
the junction of the two creeks.
87 Exhibit No. 4, Photographic View, showing part of the valley and Pueblo Hills.
88 Exhibit No. 5, Photographic View, showing continuation of valley and Pueblo
Hills, and part of Mine Ridge.
89 Exhibit No. 6, Photographic View, taken near the hacienda, looking towards
the southwest.
90 Exhibit No. 7, Photographic View, taken near the hacienda, looking towards
the northeast.
91
92 Exhibit No. 1, Landscape View, showing Mine Ridge, a portion of the Pueblo
Hills, and the valley between, looking towards the east.
93 Exhibit No. 2, Landscape View, showing Mine Ridge, a portion of the Pueblo
Hills, and the valley between, looking to the west.
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94 Exhibit No. 3, Landscape View, taken from the west bank of the Alamitos,
south of the hacienda, looking southerly up the gorge through which the
Alamitos flows.
95 Exhibit No. 4, Landscape View, taken from the same point as No. 3, and
looking northerly down the gorge through which the Alamitos flows.
96 Exhibit No. 5, Landscape View, taken from the east bank of the Alamitos, half
a mile above the hacienda, looking up the gorge.
97 Exhibit No. 6, Landscape View, taken from the south bank of the Arroyo Seco,
a short distance above the junction of the two creeks, looking southwesterly.
98 On this long case the following questions, in effect, now came up for discussion:
99 1. Did any appeal lie from the 'Survey Act?'
100 2. If so, had the United States, who filed no objections to the survey as made by
the Surveyor-General, nor took any appeal below, a right to ask here for a
reversal or any modification of the decree?
101 3. After the two decrees of the District Court itself, and the two decisions made
in this court, was the matter of this eastern line open below for such action as
was taken on it by the District Court the last time?
102 4. As an original case and on its merits, what and where were the true east and
south boundaries of the tract, the west being settled, and the north run for
quantity?
103 Messrs. Bates, A. G., and Wills, special counsel for the United States , who
desired to have the decree reversed, or so modified as to make the Pueblo Hills
the north boundary, and to place the league in the valley wholly.
104 I. No appeal lies to any court from the District Court when proceeding under
the Survey Act. The act, so far as it grants powers and imposes duties on the
District Court, has no reference to the judicial functions of the court as a part of the constitutional judicial system of the United States. All these powers and
duties might better in law, and vastly better in fact, be imposed upon some
officer, executive and ministerial simply. Congress had no power, under the
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Constitution, to grant an appeal, if it had wished. The evidence is doubtful that
it did wish. The only language used forbids, except under conditions, that which
it nowhere grants at all. The only language used is that, 'no appeal shall be
allowed from the order or decree as aforesaid of the said District Court, unless
applied for within six months.' Appeals come from implication, if they come at
all; and in a matter where the whole subject granted is in derogation of regular
judicial functions, the incidents of regular functions are not to be inferred.
105 II. If an appeal does lie—if the case is properly here—the United States have a
right to come and show the errors of the decree, even though no appeal was
taken by them. They were parties to the cause in the court below; they are
parties here; brought here. No appeal is needed, and if any were needed, it
could yet be taken.
106 III. We are not concluded by either of the decisions of this court so largelyquoted in the statement. The decision in the first case was, that the grant was
not of the valley as a valley, but of one league in the valley; and that as the
valley contained nearly two, the whole of it could not pass. The second was a
dismissal of an appeal, because made from an interlocutory, and not from a
final, decree. The argument on this point, as also on the effect of the first and
second decisions of the District Court itself on its third and last, now appealed
from by Fossat, representing Larios, will be enlarged upon by the counsel of
Berreyesa, or his representatives, who follow us.
107 IV. As an original case how stands the law on it?
108 1. As to the southern boundary. The case shows that the ridges are one
mountain; the two parts connected with each other by a low ridge running
transversely across the valley, if you will call it so—depression we style it—
which separates them. The testimony of Mr. Veatch is full to this point; that of
Mr. Matheson also. Then on the dise no of Larios there is but one ridge; no
stream is at its base. On the contrary, the Alamitos21 is indicated as coming
from behind it. It is not enough to say that the dise no is rude or rough. You
must show that it is grossly false. Now the Seco on the side of Santa Clara is
laid down; the Guadalupe is laid down; the Alamitos is laid down. That is to
say, where there are three streams in nature, three streams are put on the dise no
meant to represent nature. When, therefore, there are in addition two other
places in nature, one with a stream and one without a stream, and you find the
dise no representing a place which must be one of them, and may be one just as
well as the other, how are you to decide which place is meant? In this way
only: If a stream is marked on the dise no, then the place which has a stream, in
nature, is meant to be designated. If no stream is marked, the other.
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109 The fact that the ridge meant to be designated is called Sierra del Encino, does
not counterpoise this argument. If, indeed, there were but one oak in the region
—some one oak as much known as Herne's in Windsor Forest—then the Sierra
del Encino would be indicative. But oaks grew here on the Mining Ridge as on
the other. Nothing can be argued from a nice point of grammar,—the point of
singular and plural. Larios was an ignorant man.
110 Then putting that part of the Larios dise no which represents the east in
juxtaposition to that part of the Berreyesa which represents the west, it is a
noteworthy fact that the Sierra del Encino in the former corresponds with the
Lomas Bajas, or Mining Ridge, of the latter. This is demonstration, for the two
grants are twins.
111 An argument for our view is, moreover, found in the fact that the grant was of
the valley alone. Berreyesa, indeed, asked for the valley, 'with all the lomas or hills that pertained to it.' Larios was less ambitious. His grant says nothing of
hills at all, and is for the land called 'Los Capitancillos,' the name by which the
valley was itself familiarly known. The Californians were a primitive and
pastoral people. What they most desired were valleys inclosed by hills, so that
without fences their cattle could never stray. The mountains themselves were of
comparatively little use, if, as we may assume, the valley had pasturage enough.
As much valley as possible, and as little mountain as might be, was what Larios
wanted and received a grant for. What his representatives claim and get is asmuch of the mountains as they can, and as little of the valley as possible. Look
at the tract as delineated by either the heavy continuous or the light dotted line
of the map, at p. 65, and the thing appears. What the purpose of Larios was is
obvious by considering where he put his improvements, and where he
attempted to sell such provisional rights as he had. This was at the base of the
Pueblo Hills. The controlling force which the position of his house must have in
fixing his boundaries is acknowledged by the decrees, and the house is kept in
all the locations. But if the location made by the Surveyor-General is retained,as Mr. Black will contend that it must be, who ever saw such a shaped tract in
California? The California surveys all go in parallelograms, bodies, and even
keep to rectangles as much as practicable. Look at the shape of this tract, as
designated by the heavy lines on the map just referred to, and maintain it who
can! This court declared when the case was first here, that Larios was to take
his land within the three boundaries at his election, under the restrictions
established in California. The external or out-boundaries were fixed, but
nothing else, and he should have elected rightly.
112 2. As respects the eastern line. This concerns us less. We, indeed, prefer a
straight line. We think it clear that the east line, as surveyed originally, is right
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enough when produced so far only as to give a league in the valley. The
defence of the eastern necessity of the line we may leave to Mr. Black,
accepting his view with the restriction stated,—that it does not pass the Mining
Ridge.
113 Messrs. J. B. Williams and Carlisle, for the representatives of Berreyesa,
interested in having the decree confirmed, or left undisturbed.
114 I. As to the right of appeal by Fossat . We are content with the decree as made
below. We are content with a dismissal of the case, and a consequent standing
of that decree. Herein, and on this first point, therefore, and so far as it aids us,
we accept the argument of the counsel who have just concluded.
115 II. As respects the right of the United States to ask reversal, they not having appealed . Our interests and views here coincide with those of Larios, or his
representatives. In the defence of the well-founded position, that the United
States cannot ask a reversal, we may leave our case in the hands of Mr. Black,
who follows. In the defence of a good point, no one will argue more ably.
Some other of his positions we shall combat, as not within the category.
116 III. How stands the case affected by anything decided here or below? Are we
concluded by what that court had done or this one has said?
117 When the matter was first before the District Court, the question of the eastern
boundary was not considered by it. Its opinion, full on the southern line, says
nothing about the other. So far as the case shows, that line was not even in
controversy; though it is inferable, perhaps, from the guarded and special
language of the decree, that a dispute existed in fact. The decree determines the
southern boundary, but only designates or describes the eastern line as marked
on the dise no of Berreyesa. It said that the L-i-n-d-e-r-o was the boundary between the ranchos. So we say now. The exceptions of Berreyesa are in this
same form. But the question remained, where did the L-i-n-d-e-r-o touch the
Azul Mountain? About that the court said nothing.
118 The decree was reversed in this court, not on any question of boundary, but
because the court below had considered that the whole valley passed as a
valley. The case was remanded, with directions 'to declare the three external
boundaries designated in the grant from the evidence on file, and additionalevidence to be taken.' On the return of the cause new evidence was taken, and
the case again heard. The court, in its second decree, affirmed its former
decision with regard to that line, keeping to the language of the grants, and
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referring to the L-i-n-d-e-r-o again. The decree, as before, had a guarded form.
Certainly, it did not declare or show where the L-i-n-d-e-r-o itself would strike
the mountains. All that question—the whole question between Larios and
Berreyesa—remained just where it was.
119 From that decree, too, there was an appeal here; but the appeal was simply
dismissed as being from a decree not final. No question of merits was decidednor could be.
120 After being thus remanded, the Survey Act was passed. Berreyesa and others
now came in; and a discussion on the eastern line was for the first time in any
order.
121 The court below may or may not have sufficiently ex plained itself, in itsformer decree, as respected this eastern line; and by not excluding conclusions,
may or may not have guarded sufficiently against the possibility of
misapprehension in distant places. Naturally, perhaps, it did not overlay its
decree with this sort of matter. But that the court below meant to locate no line
specifically but the southern one, and that the eastern one was left upon the
basis of the L-i-n-d-e-r-o, whose course remained yet to be settled by survey,
will be obvious, we should think, to any one who examines the evidence, the
opinion, and the decrees themselves, as taken, delivered, and made at the
different times.
122 Bearing this history of facts in mind, and reading what this court has said by
their light, and by its presumable knowledge and recollection of them, we do
not conceive that this court has adjudged anything which prevents our
considering the case as an original one, though there are, perhaps, expressions
in the opinions of a cast somewhat stiff, and slightly difficult to understand,
except on a supposition of misapprehension; a matter most natural in so
complex and voluminous and novel a kind of case.
Then as an original question:
123 1. As to the eastern boundary. The evidence is that falda does not mean base of
anything, but does mean the skirt or fold of some waving object. It is a term
applied to the person of the other sex, and means often the lap, the loose part of
the dress which may be spread out as a lady sits on which an object may lie; butit never means the feet, the shoes. It is a term peculiarly applicable to the
graceful curves of this sloping lomita, but philologically inapplicable to its final
base. The line we must hold goes over the lomita.
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124 What do we see then in nature and on the dise no? Standing at the junction of
the creeks we see in nature, as we look across the valley, the great heights of
Mount Umunhum or the west, and the greater heights of Mount Bache on the
east. They are the great features of the landscape. The way in which they raise
their lofty heads will be urged as an argument by Mr. Black why the Azul
Range, as distinguished from the inferior hills below them, was THE Sierra of
the grant. Assuredly they were ever visible over the great landmarks of thevalley. The same is true, in a less degree, of the Mining Peak. Now on the dise
no of Berreyesa we see the Azul Range plainly delineated. That no one denies.
The Mining Range is plainly delineated. That no one denies. On this
delineation of the Azul Range we see two elevations just where the lofty peaks
should be; and one elevation where the Mining Peak should be. And the L-i-n-
d-e-r-o is drawn so as to leave one of those peaks exactly so far to the west, and
the others exactly so far to the east. How are you carrying out the purpose of
the line when in nature you reverse this whole disposition of the ridge? It may be said, in reply to us by counsel who follow us, that the strip between Larios
and Berreyesa was the only important part of the land; an argument refuted by
what we doubt not will be replied to the counsel of the United States, when
contending that Larios never had the hills at all; the reply, to wit, that the Mine
Ridge had the best pastures of the whole valley, and that this was what any
occupant of the valley would have especially valued.
125 The whole argument which we would make is presented in the opinion of thecourt below. Compelled, as we are, to curtail and mutilate, and so greatly to
weaken and injure it, it still expresses our idea. We may abridge it thus:
126 'The dise no of Berreyesa, which the prefect availed himself of as being the
more exact, is drawn with unusual accuracy. On a mere inspection of it the
location would seem indisputable. But it unfortunately happened that the
draughtsman mistook the true position of the loma situated in the centre of the
Ca nada, and represented it as situated to the eastward of its real place.
127 'The question therefore arises, is the direction of this line to be determined by
those two calls alone, or should it be controlled by other calls and indications of
the dise no of higher dignity, and concerning which a mistake was more
improbable.
128 'It is evident, from the dise no, that the Ca nada de los Capitancillos was
supposed to run in a direction nearly east and west, as the dispute between
Larios and Berreyesa only referred to the mode in which the valley should be
divided between them. And it was most natural that a line should be adopted
dividing the valley in a direction perpendicular to its length. Such a line was
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accordingly drawn on the dise no, and described in the grants as running
towards the south, i. e., nearly at right angles to the general course of the
valley.
129 'The object of Berreyesa was to resist the further encroachments of Larios on
lands for which, eight years previously, he (Berreyesa) had obtained a
provisional title from Figueroa, while the claim of Larios was derived from a purchase of the house of Galindo, and he had, as observed by Berreyesa to the
Governor, 'room to extend himself outside of the Ca nada,' while the latter 'had
absolutely nowhere to enlarge.'
130 'It is therefore improbable that Larios would have claimed, or Berreyesa
assented to, a line which running diagonally in a southeasterly direction across
the valley, would take from the latter a large tract of land, not only of the angle
of the creek and the falda, but also being far to the eastward of Larios' house,and assign to Larios' cattle almost the entire range of the Lomas Bajas,
expressly solicited by Berreyesa in his petition. It may, at all events, be asserted
that had such been the intention of the parties, the universal desire of
Californians to bound their ranchos by well-known natural objects would have
induced them to fix upon the Alamitos Creek as their common limit, and thus
secure a certain and precise boundary nearly coinciding with the imaginary line
they are supposed to have adopted.
131 'The dise no itself affords evidence of the line to which the parties intended to
assent. On it the range of the Lomas Bajas is distinctly delineated. At the
eastern extremity of this range is a hill of greater elevation than the rest, which
is turned on the east by the Alamitos. This hill is undoubtedly the Mining Peak
or Hill of New Almaden. The Alamitos is represented as issuing through a
gorge between it and a mass of hills further to the east, and running across the
plain diagonally to the junction with the Seco.
132 'If on this dise no, the line as claimed by the representatives of Larios, be
drawn, it would pass to the eastward of the mining peak, and run in an east-
southeast direction, nearly coinciding with the course of the Alamitos. But the
line actually marked by the prefect is different. It is drawn in a nearly southerly
direction, and it cuts the range of the Lomas Bajas at about one-fifth the entire
distance from their western to their eastern extremity, leaving on the left, i. e.,
on the eastern or Berreyesa side, not only the Mining Hill, but four-fifths of the
entire range Nor does it at all coincide with the course of the Alamitos; but on
the contrary, makes with the general course of that stream an angle of perhaps
45°.
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133 'Again, behind or to the south of the Lomas Bajas, is represented the range of
mountains called Sierra Azul . On their western extremity is the peak known as
Mount Umunhum; while far to the east, the lofty mountain now called Mount
Bache, is distinctly delineated.
134 'If the line contended for by the claimants be drawn on the dise no, it would run
in the direction and over to the eastward of Mount Bache. The line, as drawn by
the prefect, strikes the Sierra at a point less than one-sixth of the entire distance
between Mounts Umunhum and Bache, leaving five-sixths of the entire range
of those hills on the eastern or Berreyesa side.
135 'It is therefore evident that to treat the call for the falda, as determining the
course of the entire boundary line, we must sacrifice not only the call for the
course of the boundary line as expressed in the grant, but every other indication
of the dise no. It does not appear that the prefect visited the Ca nada before
adjusting the dispute. The line was assented to by the parties, who must have
been familiar with the natural features of the country. The direction in which
their common line should cross the valley—the portions of the disputed tract to
be assigned to each—the course of the boundary, whether towards Umunhum,
so as to leave the greater part of the Lomas Bajas to Berreyesa, or towards
Mount Bache, so as to leave nearly the whole range to Justo Larios whether it
was to cross the Alamitos, making a large angle with the general course of that
stream, and leaving the gorge through which it debouches into the valley far tothe east, or whether it was to run towards the gorge and in a course not far from
parallel with that of the Alamitos,—all these have points which we must
suppose to have been determined, and on which it is highly improbable that the
dise no could have erroneously represented the agreement of the parties.
136 'The question is not whether the calls for the angle of the creeks and for the
falda shall be rejected, for these natural objects were undoubtedly agreed upon
as fixing the limits of the two ranchos, but whether we shall allow the
subsequent direction of the line to be determined by their relative position,
concerning which there was an evident mistake, and give to it, where produced,
a course entirely inconsistent with the course specified in the grant, and clearly
indicated by natural objects on the dise no.
137 'If the position of the falda was to determine absolutely the course of the
boundary beyond, the prefect could hardly have supposed that he had removedall cause of dispute.
138 'The term 'falda' does not indicate any point on a hill , but a part of it. It signifies
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the slope or radix montis. It probably applies, in strictness, only to the lower
slope, or that part lying between the plain and a line drawn midway between its
slope and its summit, though it seems sometimes to be applied to the entire
slope. But giving it the more restricted interpretation, it is insufficient to fix the
direction of the line with any certainty. The lomita in question is situated at a
comparatively small distance from the angle of the creeks. If the boundary is to
be the production of a line drawn from the angle to some point on the falda, avariation of the position of the latter of perhaps a few yards will so change the
course of the line where produced as to materially alter the dimensions of the
tract.
139 'The boundary, therefore, would still have been left within considerable limits
arbitrary and uncertain. If it be said that the point on the falda intended to be
adopted is shown by the dise no, it may be answered that the dise no also
shows, by unmistakable natural objects, the direction of the line, and that itscourse is to be determined by those indications. Notwithstanding that, the
parties erroneously supposed and represented on the dise no that the line so
drawn would pass by the eastern base of the hill.
140 'Compelled, as we are, to resort to the dise no to ascertain the location, we
discover the nature of the error into which the parties fell, and discern what was
their intention when the line was agreed upon. It was designed to divide the
valley between the disputants by a line across or at right angles to its generalcourse. On the north it was to commence at the angle of the creeks. At the
south it was to terminate at a point opposite, crossing the Lomas Bajas and
striking the Sierra at the points indicated on the dise no. The falda of the lomita
was also adopted as the western limit of the flat land on the Berreyesa side, and
it was supposed erroneously, as now appears, that a straight line could be
drawn between the points just mentioned which would cross the eastern base
falda.
141 'As that is found to be impossible, it has seemed to me that the call for a straight
line should be rejected, and the boundary fixed by drawing a line from the
angle of the creeks to the falda, and thence across the valley points in the
Lomas Bajas, and the Sierra, to which the dise no shows it was intended to be
drawn.'
142 The court below makes a line not straight. We should ourselves have preferred
a straight line crossing the loma, as the term falda, we think, was used to allow
this. The word was used in distinction to the pie de la loma, or base of the hill.
As in a skirt there is a certain looseness, something wavy, so here the precise
place was not designated, except as the dise no of Berreyesa designates it. That
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renders it certain by showing where it passes through the Mining Ridge. If that
dise no be nicely measured, it will be seen that 82/100 of the whole length lie to
the eastward, and 18/100 to the westward of the L-i-n-d-e-ro. The Mining Ridge
having a defined length, the point can be ascertained. However, we have no
objection to the line as settled by the court below. It comes to the same result
essentially as that we desire.
143 2. As to the southern boundary. Our interests here are identical with those of
Larios; and we leave a reply to the Government counsel on this point with
counsel who follow.
144 Mr. Black, with whom was Mr. Cushing, for Fossat, representative of Larios,
seeking to reverse the decree, and re-establish the line as run by the Surveyor-
General.
145 I. The Government doubts and denies the right of any appeal . When a doubt
exists about the right of a citizen to appeal, that doubt is always to be resolved
in favor of the right. The right of appeal to the highest judicial tribunal of the
country is a sacred right, like that of trial by jury in a common law case, which
is never denied upon doubtful construction. Here it is not even doubtful. One
argument is made from the special language of the act as regards appeals. But
the appeal is given by implication; and what a statute gives by implication it
gives as much as if it gave expressly. The law declares that 'no appeal shall be
taken, unless applied for within six months.' Does not that imply that an appeal
taken before the expiration of six months is valid and good?22 Another
argument is, that the duties enjoined by the Survey Act are not judicial at all,
but ministerial wholly. Is this clear? The constant, universal, and unhesitating
construction given to the law by the District Court, by all the profession in
California, by all the counsellors practising in this court, and by this court itself
matters of common knowledge to this court and to the profession—is sufficient
to overbalance both arguments; mere doubts, in fact, thrown by the Attorney-General into the other side of the scale.
146 II. Can the United States now come here with objections?
147 The survey was brought into court under the act of 1860. A monition called on
all parties who were interested in it to appear and make objections, if any
objections they had. The United States made no objections at all. If theGovernment had objections to the survey, we had a right to know them then
and in that court, so that if they were true we could obviate them by such a
modification of the survey as might seem necessary; so that, if they were false,
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we might produce evidence to show it; and so that, if the case should ever
come into this appellate court, we might have evidence on record which would
prove the truth. To change the survey here upon grounds that were concealed
from us in the court below, is to condemn the party without a hearing. To hear
us in this court upon a record which does not contain the evidence which might
have been given in the court below, is no hearing at all. Independent of which it
is certain that the Attorney-General has a right to determine whether theGovernment will proceed. In this case he did determine. He did not proceed;
and that concludes the right of the United States.
148 III. The question of the lines of this tract is not open as an original question. It
has been settled; settled by the court below, settled by this court, and by both
more than once. The decree below stands in full force and unimpeachable by
virtue of its own inherent and essential force. Even if the grant had been a
floating one, the court decreed that it was for a specific league of which it setout the boundaries. This would end things. When, too, the case was first here, it
was declared that the land granted to Larios had boundaries on three sides,
which were well defined by objects upon the ground, and that the fourth line
was capable of being ascertained as fully as either of the other three by the
simple process of a survey. After this all that remains is that we ascertain where
those boundaries are. We have but to look at the calls of the grant, and to look
at the topography of the place, apply one to the other, and the thing is done.
Certainly no intimation dropped from this court on either of the occasions,when the case was here before, that any further judicial act was to be done in
the premises. On the contrary, the last opinion says expressly: 'The obligations
of the United States to this grantee will be performed by the performance of the
executive acts which are devolved by the grant on the local authority.'IV. But
how is the matter as an original question?
149 1. As to the southern boundary. On this side stands the main Sierra,—the Sierra
Azul,—which lifts up its head nearly 4000 feet toward the sky. Of course, thismountain forms the great feature of the landscape. It is visible in every
direction for nearly fifty miles. There it stands looming up against the
background of the southern sky, and limiting the horizon to every eye that is
raised in that direction. Of all natural objects, this is the one least likely to be
mistaken for any other. By all distinction it is THE Sierra, if there be more than
one Sierra in the case, a matter which we deny; for one ridge is 'the Sierra,' the
other the Lomas Bajas. An attempt has been made to confound the mountain
and the low hills together. The only reason ever given for saying that they areone and the same is, that they are connected together by a low ridge running
transversely across the valley which divides them.
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150 But does that connection between the hills and the mountain make them one
and the same elevation? Such connections between different elevations are so
common that it seems to be a law. The Laurel Hill and the Alleghany, two
parallel ranges of mountains in Pennsylvania, are connected together by the
Negro Mountain Ridge, which runs across the valley between them, and divides
the waters of the Monongahela from those of the Alleghany River; but nobody
has ever thought that the Laurel Hill and the Alleghany are the same mountain
for that reason. The same thing occurs with many mountains.
151 As it is with